HOA refuses to repair water damaged general common element

Kathy

I am not nor do I play a lawyer.

Typically the damage to each unit is covered by that unit's insurance and then the insurance companies will subrogate to settle it between themselves. If there is damage in the space between the two units then this is common space and the associations insurance company will get involved.

In your case there could be 3 insurance companies. Yours, the upstairs unit, and the association.

I know you do not want to hear this but in your case, I suggest calling your insurance company in immediately.

I agree with John's advice. You should have made a claim as soon as you were made aware of the damage.

Seems to me the ownership history of the unit above matters little. Just how long was this leakage allowed to continue?

And has the cause of the leak been determined?

We have similar layouts on our property and who not make a claim against our master policy to cover damages that the two unit owners failed to address.

See,s to me you wish to avoid holding thevownercofcthe unit upstairs responsible and would rather the HOA cover these costs when in fact they have no responsibility.

I would suggest you contact your insurance agent. Let them do their job settling this matter.

Just how long has this been allowed to drag on? And the leak was addressed or continues?

Kathy,

Put a claim in with your insurance company.

Give them the name and contact for the unit upstairs and the Association.

You ceiling will be repaired.
The Insurance companies will fight amongst themselves over who pays.
You can get on with life.

This is why you pay for the insurance.

Home insurance is not like car insurance. Typically, you only want to make a home insurance claim when its super expensive. They could easily double your rates when it comes up for renewal.

Get an estimate for the work, then decide (financially) if its worth it or not to get your insurance company involved.

Tim, your opinion is appreciated. And yes, I do need to "get on with life".

Jon, yes I do have insurance. And yes I have NOT handled this situation well. However, kindly keep in mind that the water damage occurred prior to Mr. U's ownership. The Board's unwritten policy was to have unit owners handle these situations; however, this is contrary to the unambiguous provisions of our Master Deed and Bylaws which mandate that the Association repair common elements and recoup costs from the person who damaged them or from their insurance. While the law may hold Mr. U responsible, it just doesn't seem right to me.

Steve, I'll probably sell the condo so doubled rates aren't a factor for me. Getting an estimate for mold remediation is problematical and unlike getting an estimate for car repairs. It's difficult to even know who to get an estimate from until several hundred dollars has been paid to have a remediation protocol prepared. This is because not all contractors are licensed to do remediation over 100 square feet and mold may extend down into walls and behind tub tiles. You don't generally know the extent until repairs begin.

Ellie, will post a reply to your question soon.

Kathy I'm sorry but this situation gets more difficult to understand as we get more information.

The owner upstairs has owned the unit for 3 years. The damage occurred PRIOR to his ownership. So this has been ongoing for 3+ years?

Now the owner upstairs has a plumber come in a find a missing washer that might be the source? Then you have had a mold remediation contractor examine the condition of your unit but in the meantime you have never filed a claim with your own insurance.

My opinion your interpretation of the governing documents fails to address damage caused due to the actions or inactions of others.

If the building burned to the ground then in that case the HOA would cover the cost to replace and repair. You have a plumbing leak caused somehow by the upstairs unit in my view NOT the responsibility of the HOA to cover those costs.

Your insurance company should have been allowed to settle this matter when it occurred. Not 3 years or more after the fact.

Believe it or not this is a common and easily settled situation. No need for you to have contacted lawyers, contractors, HOA boards, or whomever else.

My concern will your insurance carrier honor such a claim from what occurred years ago?

KathyC5,

Thank you for posting words from your Master Deed.

1. The words under (A)(3) “upper most ceiling in each apartment” are clear and typical. The word “each” apartment (Unit) certainly specifies that the upper bound of a Condo Unit is the uppermost ceiling of “each” Condo – whether or not a Condo Unit is a lower unit or an upper unit. So it is hard to understand why the Association’s Attorney would state “it really means only the ceiling of the units on the 2nd floor”.

Do you know if the Association has that interpretation in writing?

2. The words from Section 6.(A) also help. Again rather typical. And again the usage of the word “each” - so applies to ALL Condo Units, and reference to “all that space contained within certain horizontal plains” adds to understanding.

3. From Section 6.(A) the words: “each apartment shall be measured from interior finished unpainted surfaces of the main walls and ceiling and from the interior surface of the finished subfloor.

Wording similar to my Association’s. Again specifying “each” apartment (Unit). And most important, the definition of the Unit boundary as: “the interior finished unpainted surfaces of the ceiling”.

Since the interior "surface" is the boundary, the actual ceiling plasterboard is not part of the Condo Unit, and so is not owned by the Condo Owner. Also the Condo Owner does not own any of the building structure behind, above, the ceiling plasterboard.

Since those elements are NOT defined as part of the Condo Unit, and are behind the boundary of the Condo Unit, those elements can only be Common.

4. Re the Common ceiling plasterboard, and Association responsibility: Without knowing more, I agree, assuming of course, that neither Condo Owner, upper or lower, did anything to cause the leak and/or make it worse.

As others have pointed out, when the leak was first noticed, when it was reported, what has, or has not been done, in the interim, needs also to be taken into consideration. Also the very real possibility that if the leak had been repaired, when discovered, that there would be “no mold" to contend with now.

5. Like yours, my Condo Association is self-managed, has apartment type buildings, with first floor and second floor Condo Units, with Unit Boundaries defined similar. If it were my Association, as soon as the Board “heard” there was a leak, such as you describe, our Association Plumber would have immediately been called to investigate. Once the source of the leak became known, decisions would then be made as to whom is responsible for the cost of repair.

6. Re your Master Deed (A)2. All transmission lines wherever located in the project for gas, water, electricity, sewer, telephone or other utility which services more than one apartment shall be a general common element.

This is an important sentence, because it defines a water line which services more than one apartment as a common element.

7. Over the years we have had a number of “strange” first floor ceiling leaks that were NOT caused by anything in, or from, the above upstairs Condo Unit.

If your leak was due to a "hot water shower valve stem that didn't have a washer” in the upstairs Condo Unit, then of course, it was from the upstairs Condo Unit.

But – and just food or thought - we had a ceiling leak in one of our first floor Condo Units. The Plumber could find nothing in the second floor Condo Unit above, that could be the cause. After he cut out an area of the first floor ceiling “to look”, he found that a solder joint in the water line that supplied water to BOTH of the Units, upper and lower, had corroded and was leaking.

So clearly it was now Association Responsibility only, as the water line was a Common Element.

8. My Association, in addition to Apartment Buildings, also has a number of two (2) story Townhouse Buildings. When referring to the Townhouse Condo Units, the upper boundary is the uppermost second floor ceiling.

I wonder if your Association Attorney might not have read your “specific” Master Deed, and or, assumed Townhouse Units, rather than stacked Condo Apartment Units.

Steve, I did not know that home insurance "follows the house". Thank you for taking the time to make me aware of that fact.

I'm very unsure whether a long-existing water leak that causes damage will be covered by insurance.

First - the landlord should inspect the rental property.

Second - the tenant should notify the owner in any event.

Third - the damage is willful because someone allowed it to happen and it isn't an accident

Fourth - The failure to inspect and the tenant failure to report was double negligence, thus "victimizing" the HOA (and its policy)

See how the insurance company gets off the hook?

Repair your ceiling and move on w/ life. You'll worry over it more than it's worth.

HINT: I had a tenant allow an in-floor water leak from a "pinhole" in my pipe to rot the living room floor, collapsing it. Filed insurance. Got rejected and suggested I sue the tenant (yeah, right). She was negligent....I was negligent for not inspecting.

Sorry for your maintenance issue on the investment property. I've been there.